Terms & Conditions of Sale
In these Terms:
- 1.1 “Company” means MAD Design Australia Pty Ltd ABN 83 117 378 917 and its successors and assigns;
- 1.2 “Consequential Loss or Damage” means loss of profits, revenue, use or opportunity, re-installation costs, removal costs and any remote or indirect form of loss or damage;
- 1.3 “Goods” means all goods sold and/or delivered by the Company to the Customer from time to time;
- 1.4 “GST” means the Goods and Services Tax imposed by A New Tax System (Goods & Services Tax) Act 1999 and any related act and/or regulations; and
- 1.5 “Terms” means these Terms and Conditions of Sale.
- 2.1 These Terms apply to the Goods.
- 2.2 No amendment, alteration, waiver or cancellation of any of these Terms is binding on the Company unless confirmed by the Company in writing.
- 2.3 The Customer acknowledges that no employee or agent of the Company has any right to make any representation, warranty or promise in relation of the Goods or the sale of the Goods other than as contained in these Terms.
- 3.1 Prices are determined by the price list current at the time of order and are subject to change without notice.
- 3.2 Prices do not include the cost of delivery and freight.
4. TERMS OF PAYMENT
- 4.1 Payments are to be made direct to the Company, strictly net, without any deduction or discount other than as stated herein or in the relevant invoice or statement.
- 4.2 Payments are to be made on a COD basis unless specifically stated otherwise in the relevant invoice or statement.
- 4.3 If payments are made by credit card, the Company reserves the right to recover from the Customer any charges levied in respect of those payments.
- 4.4 Interest is payable on all overdue accounts calculated on a daily basis at the rate of 2% per month as from the due date for payment until payment is received by the Company.
5. PROPERTY IN GOODS
Legal and beneficial ownership of Goods supplied by the Company will not pass to the Customer until such time as the goods so supplied and all other goods supplied by the Company to the Customer from time to time, have been paid in full in cash or cleared funds.
6. RISK AND INSURANCE
- 6.1 The Goods are entirely at the risk of the Customer from the moment the Goods leave the Company’s premises even though property in the Goods has not passed to the Customer at that time.
- 6.2 The Customer must, at its own expense, maintain the Goods and insure them for the benefit of the Company against theft, breakdown, fire, water and other risks, as from the moment of delivery to the Customer and until title in the Goods has passed to the Customer. The Customer must further take all reasonable measures to ensure that the Company’s title to the Goods is in no way prejudiced as a result. If the Goods are lost, destroyed or damaged, any insurance proceeds relating to the Goods in respect of such event received by the Customer, must immediately be paid to the Company.
7. RE-SALE OF GOODS
- 7.1 Should the Customer be a re-seller then, subject to clause 7.2.4, the Customer has the right to sell the Goods in its own name at full market value and in the ordinary course of business.
- 7.2 Until the amount payable to the Company in respect of the Goods, and in respect of all other Goods previously supplied by the Company to the Customer, has been paid in full in cash or cleared fund:
- 7.2.1 the Customer will hold the Goods only as bailee for the Company;
- 7.2.2 the Goods must be stored in such manner that they are readily distinguishable from other goods owned by the Customer or other persons and so as to clearly show that they are the property of the Company;
- 7.2.3 the Customer must indemnify the Company from and against any claim, action, proceeding, damage, loss, cost, expense or liability incurred or suffered by the Company arising out of the possession, use or disposal of the Goods by the Customer or repossession or attempted repossession of them by the Company; and
- 7.2.4 any sale of the Goods under clause 7.1 will only be effected by the Customer as trustee for the Company and the proceeds of such sale and the rights of the Company’s Customer against its Customer arising from such sale will be held on trust for the Company. The said proceeds must be held in a separate account or otherwise clearly identified in the books and records of the Customer.
- 7.3 If the Customer resells any Goods then, unless the Goods are clearly identifiable by serial numbers or other distinguishing marks, the Customer is deemed to have disposed of the Goods in the chronological order of supply by the Company to the Customer (oldest to most recent).
8. INCORPORATION OF GOODS
- 8.1 If the Customer uses the Goods in some manufacturing or construction process of its own or some third party, then the Customer must hold such part of the moneys received from time to time by the Customer for such manufacturing or construction process as relates to the Goods, in trust for the Company.
- 8.2 The part referred to in clause 8.1 will be deemed to equal in dollar terms to the amount owing by the Customer to the Company at the time of the receipt of such moneys by the Customer.
- 8.3 Money received by the Customer excludes any debts due but not yet paid by the Customer.
- 8.4 In the circumstances outlined in clause 8.1, the Customer must not assign or deal with its debts in any way prior to payment of the moneys receivable by the Customer in respect of the Goods prior to their payment to the Company.
- 9.1 the Goods are not paid for in accordance with these Terms or any other written agreement between the Company and the Customer; or
- 9.2 the Company receives notice of, or reasonably believes that a third party may attempt to levy execution against or attach the Goods; or
- 9.3 any other event occurs which is likely to adversely affect the Customer’s ability to pay for the Goods (including but not limited to the appointment of a receiver, receiver and manager, administrator, controller, liquidator, provisional liquidator, trustee or similar person [each an “insolvency representative”] to the Customer’s undertaking), then the Company may at any time thereafter, without notice to the Customer and without prejudice to any other rights which it may have against the Customer, terminate any contract relating to the Goods and the bailment referred to in clause 7.2
10. RIGHT TO ENTER PREMISES
In any of the circumstances referred to in the preceding clause, the Customer:
- 10.1 authorises the Company by itself, its agents or representatives at all reasonable times, without notice, to enter onto (with force if reasonably necessary) and at all necessary time(s), to remain in and on any premises where the Goods are located in order to collect the Goods, without being guilty of any manner of trespass; and
- 10.2 assigns to the Company all the Customer’s rights to enter onto and remain in and on such premises until all the Goods have been collected.
11. ADMINISTRATION, RECEIVERSHIP ETC.
In any of the circumstances referred to in clause 9.3:
- 11.1 neither the Customer nor its insolvency representative or any other person acting for the Customer and/or its creditors is entitled to sell, charge, remove, dispose of, use or otherwise deal with the Goods in any way inconsistent with the Company’s ownership of the Goods, without the Company’s prior written approval;
- 11.2 the Customer, its insolvency representative or any other person acting for or on behalf of the Customer and/or its creditors is obliged to re-deliver the Goods to the Company immediately or immediately on his appointment at its or his expense; and
- 11.3 if the Goods are returned to or collected by the Company, the Company will within 28 days, account to the Customer or its legal representative for all monies received for the Goods from the Customer less the Company’s reasonable administration charges, expenses incurred and loss of profits involved.
12. CUSTOMER AS TRUSTEE
If the Customer carries on business as trustee of a trust then the Customer warrants that:
- 1.1 the Customer enters into the contract as trustee of a trust;
- 1.2 the Customer has all requisite powers to enter into the contract;
- 1.3 the beneficiary of the trust approves the purchase of the Goods on the terms of the contract; and
- 1.4 the assets of the trust are available to the Company in satisfaction of any debt incurred by the Customer.
13. CUSTOMS DUTIES, TARIFFS AND LEVIES
All applicable customs duties, tariffs and levies are payable by the Customer unless the order, order confirmation, invoice or other writing indicates otherwise.
14. GOODS & SERVICES TAX
- 14.1 Unless expressly stated otherwise in writing, GST is not included in any quoted price.
- 14.2 If GST is imposed on the Company in respect of the supply of the Goods or any other supply by the Company to the Customer, then the Customer must pay the amount of such GST to the company in addition to the quoted price.
- 14.3 the Company must give the Customer written notice of the amount of any GST payable under this clause and provide a tax invoice showing the amount of the GST payable.
Availability dates are estimates only, but the Company will use its best endeavours to maintain these estimates.
16. DELIVERY BY INSTALMENTS
- 16.1 The Company reserves the right to deliver the Goods in whole or by instalments, as well as to deliver prior to the date for delivery and in such event the Customer must not refuse to take delivery of the Goods.
- 16.2 Where the Goods are delivered by instalments, each instalment is sold under a separate contract.
- 16.3 Any failure on the part of the Company to deliver instalments within any specified time does not entitle the Customer to repudiate the contract with regard to the balance remaining undelivered.
The Goods are deemed to have been accepted in good order and condition, unless the Customer has inspected the Goods and given written notice to the Company:
- 17.1 immediately after collection or delivery that the Goods have been damaged on or before transport; or
- 17.2 within seven (7) days after collection or delivery that the Goods do not comply with the relevant specifications or descriptions.
18. RETURNS OF GOODS
- 18.1 No returns will be accepted unless the Company has previously agreed in writing. If the Company agrees to the return of Goods, they must be unsoiled, undamaged and in a resaleable condition with the original packaging (or Customer pays for all costs of replacement or repair) and delivered free to the Company’s premises unless otherwise agreed by the Company in writing. A restocking fee of 20% of the invoice value of the Goods will be applied.
- 18.2 Goods imported especially for the Customer or non-standard equipment made to special order cannot under any circumstances be returned and/or credited.
19. CANCELLATION OF ORDER
No order may be cancelled, modified or deferred without the prior written consent of the Company (which is at the Company’s sole discretion). If such consent is given, it is at the Company’s election, subject to the Company being paid a cancellation fee being 10% of the invoice value of the Goods if cancelled within 48 hours of placement of order and otherwise 20% of the invoice value of the Goods.
20. COMPANY'S LIABILITY LIMITED
- 20.1 These Terms do not affect the rights, entitlements and remedies conferred by the Trade Practices Act (1974).
- 20.2 The Company is not subject to, and the Customer releases the Company from any liability (including but not limited to Consequential Loss or Damage) because of any delay in delivery or fault or defect in the Goods.
- 20.3 The Customer acknowledges that the Company is not responsible if the Goods do not comply with any applicable installation, safety standard(s) or similar law(s) or regulation(s), and that the Company is not liable for any claim, cost, damage or demand resulting from such non-compliance.
- 20.4 The Customer further acknowledges that the Company is not responsible and the Customer indemnifies the Company from any claim by a customer or client of the Customer arising from or relating to the use of the Goods otherwise then strictly in accordance with manual provided with the Goods and will all applicable installation, safety standard(s) or similar law(s) or regulation(s).
- 20.5 If any statutory provisions under the Trade Practices Act 1974 or any other statute(s) apply to the Agreement then, to the extent to which the Company is entitled to do so, the Company’s liability under the statutory provisions is limited, at the Company’s option, to:
- 20.5.1 replacement or repair of the Goods or the supply of equivalent Goods; or
- 20.5.2 payment of the cost of replacing or repairing the Goods or of acquiring equivalent goods, and in either case, the Company will not be liable for any Consequential Loss or Damage or other direct or indirect loss or damage.
- 21.1 The Company warrants to the Customer that the Goods will be supplied in an undamaged condition.
- 21.2 On discovery of any defect in the Goods, the Customer must immediately notify the Company in writing of such defect. The Customer must not carry out any remedial work to alleged defective Goods without first obtaining the written consent of the Company to do so.
- 21.3 The provisions of any act or law (including but not limited to the Trade Practices Act 1974) implying terms, conditions and warranties, or any other terms, conditions and warranties which might otherwise apply to or arise out of the agreement between the Company and the Customer in relation to the Goods are hereby expressly negatived and excluded to the full extent permitted by law.
- 21.4 The Customer expressly acknowledges and agrees that it has not relied upon, and the Company is not liable for any advice given by the Company, its servants, agents, representatives or employees in relation to the suitability for any purposes of the Goods.
Particulars in leaflets, catalogues, drawings, brochures and other printed material are illustrations only, from no part of the contract between the Company and the Customer, and are not binding on the Company.
Any sample inspected by the Customer is solely for the Customer’s convenience and does not constitute a sale by sample. All samples remain the property of the Company.
- 1.1 Unless otherwise agreed in writing, the Goods are supplied subject to any specification as to weight, quantity, size, dimensions, finishes, chemical composition and physical properties as may be published generally by the Company or as may be set out in any specification issued by the Company in relation to the Goods, or, if no such specification has been published or set out, subject to such specification as is normally regarded as being commercially acceptable.
- 1.2 Where any specification for the Goods are to be supplied by the Customer, they must be supplied in a reasonable time to enable the Company to complete delivery by the date for delivery.
- 25.1 The terms of contract between the parties are wholly contained in these Terms and any other writing signed by both parties.
- 25.2 The contract is deemed to have been made at the Company’s place of business in Sydney in the State of New South Wales, Australia and will be governed by and construed and performed in accordance with, the laws of that state and any cause of action is deemed to have arisen there.
26. FORCE MAJEURE
The Company will not be liable for any breach of contract due to any matter or thing beyond the Company’s control (including but not limited to transport stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lock- outs, work stoppages, wars, riots or civil commotion, intervention of public authority, explosion or accident).
27. WAIVER OF BREACH
No failure by the Company to insist on strict performances of any of the terms in these Terms is a waiver of any right or remedy which the Company may have, and is not a waiver of any subsequent breach or default by the Customer.
28. NO ASSIGNMENT
Neither the Agreement nor any rights arising under the Agreement may be assigned by the Customer without the prior written consent of the Company which is at the Company’s absolute discretion.
If any provision contained in these Terms is held by a court to be unlawful, invalid or unenforceable, the validity and enforceability of the remaining provisions are not affected.